PUBLIC LAW 1/2 Flashcards
1
Q
What 3 courts developed from the Kings Council?
A
Exchequer
Common Pleas
Kings Bench
2
Q
What does todays legal system have its origins in?
A
The King’s and Queens courts following the Norman conquest
3
Q
What dictated the establishment of a fixed Kings Court?
A
The Magna Carta in 1215
4
Q
What is the historical definition of the common law?
A
The law as applied by the Kings judges vs the law as applied by the local customary courts
5
Q
What was the problem with the writ system?
A
It was rigid, and you could only be heard in court if you fit a category
Prevented growth of common law
6
Q
What does Stare decisis mean?
A
Stand by precedent, stand by what has been decided
7
Q
What 3 things does a judgement consist of?
A
A summary of facts
Statements of law, ratio, obiter dicta
Decision on remedy
8
Q
Does distinguishing a case widen or narrow the ratio of it?
A
Narrow
9
Q
When is a judgement reversed?
A
On appeal
10
Q
When is a judgement overruled?
A
When a superior court decides the OG precedent is wrong and corrects it
11
Q
When can the court of appeal depart from its precedent?
A
- For previously conflicting decisions
- If the CAs decision was overruled expressly or impliedly by the supreme court
- If the CAs previous decision was made per incuriam
12
Q
What does per incarium mean?
A
When a previous court was not aware of a relevant authority
13
Q
Is the upper tribunal higher than the first tribunal?
A
Yes
14
Q
Do judges create law?
A
The modern opinion is philosophically they shouldn’t but really they do
15
Q
Which court did equity develop from?
A
The court of chancery
16
Q
Where equity and the common law conflict, which will prevail?
A
Equity
17
Q
When can equitable remedies be awarded?
A
When damages are not adequate
18
Q
What are the equitable remedies?
A
Specific performance
Injunction
Declaration
Rescission
Rectification
19
Q
When is specific performance available?
A
There is a valid, enforceable contract
Damages would not be adequate
20
Q
In what 2 contractual circumstances is specific performance not available?
A
Breach of contract for personal services
Performance of contractual obligations which would require constant supervision
21
Q
What is an equitable declaration?
A
A legally binding statement about any of:
The legal rights of the parties
The existence of facts
A principle of law
22
Q
When is rescission available?
A
Mistake
Misrep
Duress/undue influence
Where the parties can be put back into their pre-contract positions
23
Q
What does equitable rectification do?
A
Corrects a document to reflect the parties contractual intention
Only written contracts
24
Q
What is primary legislation?
A
Act of parliament
25
What is secondary legislation also known as?
Subordinate
26
What is secondary legislation?
Law created under ministers or other bodies under powers given to them by a parent act of parliament
27
What is a public act?
Acts relating to matters of general public concern
28
What is a private act?
An act which relates to particular places or particular people... eg., by a local authority to build a bridge
29
What is a private members bill?
A bill promoted by a particular member of parliament through the ballot system which can eventually be supported by the government
30
What are the 5 steps in the primary legislative process?
First reading
Second reading
Committee stage
Report Stage
Third reading
31
What happens at the first reading?
Title is read
Date set for second reading
32
What happens at the second reading?
Main principles of the bill are debated by MPs
33
What happens at the committee stage of a bill?
Details are scrutinised by a legislative committee
34
What happens at the report stage of a bill?
Proposed amendments are debated, there is a vote on the committees report
35
What happens at the third reading?
Final debate and vote on the bill, if passed it goes on to the other house
36
What powers do courts have over secondary legislation?
If it was created outside of the powers provided in a parent act they can quash it
37
How is secondary legislation written down/made? In what types of documents?
Statutory instruments, orders in council, by laws
38
Can parliament amend a statutory instrument?
No, they can only approve or reject it
39
In which house/s can bills be introduced?
Either
40
What is the literal rule of statutory interpretation?
Ordinary, plain and natural meaning of the words... no consideration of what parliament 'meant'
41
What is the golden rule of statutory legislation?
If you were to interpret it literally, it is so inconsistent/absurd that the court cannot be convinced it was Parliaments intention so the court is justified in applying another signification
42
What is the mischief rule of statutory interpretation?
Examines the original purpose of the provision under consideration
This is a very old rule, at the time the purpose was stated in the preamble of statute
43
Is the mischief rule applicable in todays day and age?
No, completely defunct and replaced by purposive
44
What is the purposive approach?
Looks at both the meaning and underlying process
45
In a purposive approach where the literal meaning conflicts with the will of parliament?
If purposive gives a clear answer that will be used
Otherwise a strict literal interpretation will be applied
46
What does expressio unius mean?
Expression of one thing to the exclusion of another
47
What does edjusdem generis mean?
Of the same kind
48
What does noscitur a sociis mean?
A word known by its associates
49
What presumption is made when general words follow a list of specific words?
The general words are interpreted to restrict them to the same kind of objects as the specific words
50
Is the UDHR law?
No, but it is customary international law
51
At what point can a claim be made to the ECtHR in Strasbourg?
If all domestic legal remedies had already been exhausted
52
Is the Council of Europe an EU entity?
No
53
What oversees the ECHR?
The council of europe
54
What is an absolute human right?
Cannot be lawfully interfered with in any way by the state
55
What is a limited human right?
A right that can sometimes be interfered with by the state
56
What is a qualified right?
A right which can be lawfully interfered with provided certain legal tests are met
57
Generally, what 3 circumstances must there be for a state to interfere with a qualified right?
Interference was prescribed by or in accordance with the law
Interference was in pursuit of a legitimate aim
Interference was necessary in a democratic society
58
What is a monist legal system?
When a legal system treats all forms of law as belonging to a single binding legal system
International law is binding over domestic legal systems
59
What is a dualist legal system?
Two legal orders are wholly separate
UK court is not bound in the same way by international law as in the monist system
60
When is international law applicable in the UK?
When the UK is a party to proceedings before an international court to which jurisdiction it has agreed to submit
When the UK has incorporated international legal rules into its domestic legal system
61
Is parliament a public authority for the purposes of the ECHR?
No
62
What is the CCRC?
Criminal cases review commission
63
What does the CCRC have the power to do?
Review miscarriages of justice and send cases back to the court of appeal or crown court
64
What does the CCRC usually have to identify to send cases back for appeal?
Identify new evidence or a new legal argument that makes the case look significantly different
65
What are the 3 levels of judge in county court from least to most senior?
Deputy district judges
District judges
Circuit judges
66
Where will an appeal against a decision by a deputy district judge or district judge happen?
it will remain in county court and be heard by a circuit judge
67
Where will a decision from a circuit judge be appealed to?
It will go from county to high court
68
Does county court create precedents?
No
69
What types of cases does the first tier tribunal hear?
Appeals from citizens against decisions made by government departments
70
What are the 8 first tier tribunals?
War and Pensions and Armed Forces Compensation Chamber
Social Entitlement Chamber
Health, education and social care chamber
General regulatory chamber
Tax chamber
Immigration and asylum chamber
Property chamber
**employment but it isn't technically a chamber
71
What 4 chambers are in the upper tribunal?
Administrative appeals chamber
Tax and chancery chamber
Immigration and asylum chamber
Lands chamber
**employment appeals tribunal is not technically a chamber
72
Who is the senior president of the tribunals?
The independent and statutory leader of the tribunal judiciary
73
Are tribunal members legally qualified?
No, there are specialised lay members too
74
What is an inquest?
A coroners investigation
75
What qualification are coroners?
Barristers, solicitors or medical practitioners of not less than 5 years standing
76
What is a coroners decision called?
A verdict
77
What is an inquest similar to?
A court hearing but less formal
78
Are there juries in inquests?
Yes, especially if the cause of death needs to be decided, especially if happened in state custody
79
Are coroners members of the judiciary?
No
80
Who starts a public inquiry?
Government departments
81
What special powers do public inquiries have?
They can compel testimony and the release of other forms of evidence
82
What justification is required for a public inquiry?
The existence of public concern
83
Does the government have to act on the recommendations of a statutory public inquiry?
No
84
What are the senior courts?
Supreme court
Court of appeal
High court
Crown court
85
What 3 divisions are in the high court?
Kings bench - criminal
Chancery division
Family division
86
Where do high court judges sit in London?
Royal courts of justice
87
Where do high court judges sit outside london?
District registries
88
How do you get the position of a high court judge?
Nominally appointed by the monarch on the recommendation of the Lord Chancellor after a fair and open competition administered by the Judicial Appointments Commission
89
What prefix do high court judges have?
The honourable
90
How do you verbally refer to a High Court judge?
Mr, Mrs, Ms
91
What is a master?
A procedural judge in the high court
92
What does a master do?
Deal with all aspects of legal proceedings from issue until it is ready for a trial
93
How many masters are there?
Senior master
Nine KBD masters
Chief master
5 chancery masters
94
What is a district registry?
A high court centre where cases are heard outside London
95
Is KBD predominantly a civil or criminal court?
Civil
96
What do judges in the KBD mainly deal with?
Common law business -- contract and tort
97
What more specialist measures does the KBD preside over?
Applications for judicial review
98
What is the administrative court a part of? (e.g., which court/division)
The KBD
99
What does the administrative court deal with?
The lawfulness of actions of central/local government, regulatory/disciplinary bodies, inferior courts and tribunals and other public bodies and officials exercising public functions
100
Does the administrative court deal with both civil and criminal?
Yes
101
Which judicial review proceedings are dealt with outside the Administrative Court and where?
Immigration cases are mostly heard in the upper tribunal
102
When will an administrative court case be heard by a divisional court with 2+ judges?
Usually criminal cases including more difficult extradition cases
103
What does the chancery division deal with mostly?
Business and property cases
104
Who is the head of the chancery division?
The chancellor of the high court
105
What 3 courts are in the chancery division?
Insolvency and companies court
Patents court
Intellectual property enterprise court
106
Outside the 3 main courts within the chancery division, what is the 'general chancery work'
Area of practice where equity is most prevalent
107
In which building is the chancery division based?
The rolls building
108
What is the organisational function of the business and property courts?
They bring together the work of the chancery, and specialist courts of the KBD
109
Which buildings do the business and property courts operate out of?
The rolls building, and at the civil and family courts in manchester, birmingham, leeds, cardiff and bristol
110
What is included within the business and property courts category?
Commercial court
Business list
Admiralty court
Circuit commercial court
Technology and construction court
The financial market
The insolvency list
111
What type of child/family related decisions does the high court have exclusive jurisdiction over?
Wardship
112
Where do family law appeals go to?
The Family Court
113
Where can solicitors carry out advocacy if they don't have higher rights?
MAGS
County
Tribunals
Appeal Tribunals
114
Where can solicitors with higher rights appear?
High court
Court of appeal
Supreme court
115
What 2 divisions does the court of appeal have?
Civil and criminal
116
What building is the Court of Appeal based out of?
The Royal Courts of Justice, OCCASIONALLY sits elsewhere
117
How do you become a court of appeal judge?
You are appointed by the monarch, on the recommendation of a selection panel convened by the Judicial Appointments Commission
118
Who are the judges on the court of appeal?
The heads of the other divisions (e.g., Master of the Rolls, President of the KBD)
The Lords Justices of Appeal
119
How do you orally refer to an appeal court judge?
Lord/Lady Justice (surname)
120
How do you refer to an appeal court judge in writing?
Surname LJ
121
From which courts does the civil division of the court of appeal hear from?
High court
County (CIRCUIT judge)
Employment appeal tribunals
Immigration appeal tribunal
122
Who heads the Civil Division of the court of appeal?
Master of the Rolls
123
How many judges are there in a civil court of appeal case?
3
124
Where does the criminal division of the court of appeal hear appeals from?
Crown court
125
Who heads the criminal division of the court of appeal?
The Lord Chief Justice
Head of the judiciary, President of the Courts of England and Wales
126
Who is the head of the judiciary?
The lord chief justice
127
How many judges hear criminal cases in the court of appeal?
Generally 3
128
What combination of judges hear civil court of appeal cases?
Any combination of the heads of division and lord justices of appeal
129
What combination of judges hear cases in the criminal court of appeal?
Lord chief justice OR President of KBD OR one of the Lord Justices of Appeal
PLUS
2 high court judges
OR
1 high court judge and one specially nominated senior circuit judge
130
What did the supreme court replace?
The appellate committee of the house of lords
131
How many supreme court judges are there?
12
132
What are supreme court judges known as?
Justices
133
How do you orally refer to a supreme court judge?
Lord/Lady Surname
134
What is the senior supreme court judge known as?
The president
135
When does the full supreme court sit?
For cases of constitutional significance
136
What is a leapfrog appeal?
When a high court judgement goes straight to the supreme court and skips the court of appeal when it is obvious that the case will have to go to the supreme court due to its importance
137
What is access to justice?
A basic principle of the rule of law
138
What is civil legal aid in principle available for?
Community care
Actions against public authorities
Mental health and mental capacity
Judicial review
Special educational needs
Asylum claims
Immigration detention
Debt where your home is at risk
Public family law regarding the protection of children
139
What is the merits test for legal aid if a client needs legal advice?
The cost of the legal advice must not be outweighed by the benefit that the client will gain from access to the advice
140
What is the merits test for legal aid if a client needs legal representation?
Whether they are at least as likely to win their case as to lose it
141
Do you need to pass a means test for legal aid?
Yes
142
What is a litigant in person?
Somebody self-representing in court
143
Can you self-represent in senior courts?
Yes
144
What is a McKenzie friend?
A court assistant that is not regulated
145
When did the United Kingdom officially exist in law?
Enactment of the Acts of Union 1800
146
What is a constitution?
A code of rules which regulates the relationship between individual and state
147
What was the first constitutional document in the UK?
Magna Carta 1215
148
When did the UK monarch become not above the law?
With the introduction of the Magna Carta
149
Which constitutional document is seen as establishing the concept of parliamentary sovereignty?
The Bill of Rights 1689
150
At what point did it become impossible for the monarch to overrule an act of parliament?
Bill of Rights 1689
151
Which constitutional document created an independent salaried judiciary?
The Act of Settlement 1700
152
What are key remaining prerogative powers?
Summons and prorogue parliament
Give pardons
Issue passports
Mobilise the armed forces and declare war
Negotiate treaties
153
What are the sources of constitutional rules?
Legislation, case law, constitutional conventions
154
What is a constitutional statute?
Statute that changes the legal relationship between citizen and state in some general overarching manner and enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights
155
What fundamental constitutional rule did Entick v Carrington establish?
That the state cannot exercise power unless that power is expressly authorised by law
156
What 4 broad principles make up the idea of constitutionalism?
Government power must be exercised within legal limits
Power is dispersed between the organisations of the state so power isn't too concentrated
Government is accountable to the people
The fundamental rights and freedoms of citizens are protected
157
What are the 2 houses of parliament?
Commons
Lords
158
What is the house of commons?
650 members from different political parties
159
What is the house of lords?
Unelected body of appointed life peers, hereditary peers and bishops
160
Which house is the upper house?
Lords
161
Which types of legislation is the house of commons alone responsible for?
Decisions on public finances
162
What powers does the house of lords have regarding decisions on public finances?
They can only consider them but not amend or block
163
What is the main role of the house of lords?
Scrutinise and make amendments to general legislation approved by the house of commons
164
What constitutional role does the house of lords play?
They are an important check on the exercise of government power
165
What is a 'government defeat' in the house of Lords?
When the Lords refuse a piece of legislation
166
What do government defeats usually result in?
Amendments to the legislation
167
What was the constitutional issue with the House of Lords being the most senior court?
There was blurry separation of powers between the judiciary and the other 2 bodies of state
168
Which act fixed the constitutional problems created by the House of Lords being the most senior court?
Constitutional reform act 2005
169
Are the prime minister and cabinet a part of the executive?
Yes
170
Where do the powers of government departments come from??
Statute
Common law
Royal prerogative
171
Where do civil servants derive their powers from?
Powers granted to ministers
172
Who is politically responsible for the powers employed by civil servants?
The minister
173
Which court can intervene if the government has poorly exercised its power?
The administrative court
174
What 3 key changes did the constitutional reform act do to strengthen the judiciary?
Lord Chancellor no longer has legal functions really, these are taken over by the Lord Chief Justice
Established the Supreme Court, got rid of the judicial function of the House of Lords
Created the Judicial Appointments Commission for the appointment of judges (so they were no longer appointed on advice from the Lord Chancellor
175
Who is the guardians of the UK constitution?
The supreme court
176
What is the cabinet manual?
Guide to laws, conventions and rules on the operation of government
177
What are 5 top examples of conventions that relate to the legislature?
House of Lords defers to the Commons
House of Lords should not reject government legislation based on an election manifesto
Financial bills should only be introduced by a cabinet minister in Commons
Westminster parliament should not legislate on devolved matters in scotland, wales or northern ireland
House of commons should be consulted before the government embarks on major foreign policy initiatives involving the armed forces
178
What is the Salisbury-Addison convention?
House of Lords should not reject election manifesto based bills at the second reading
179
What is the Sewel convention?
Westminister shouldn't legislate for the devolved powers
180
What are 7 examples of conventions relating to the executive?
Monarch acts on advice given by ministers
Monarch will not exercise right to refuse royal assent to bills
Monarch will appoint as Prime Minister the leader of the political party which is able to command the confidence of the House of Commons
The Prime Minister chooses the Cabinet Ministers
The Prime Minister and Chancellor of the Exchequer should be MP's
After a vote of no confidence in Commons, government will resign -- general election
Monarch should be asked for consent to proposed legislation affecting the interests of the Monarchy
181
What are the twin conventions on ministerial responsibility?
Collective ministerial responsibility (CMR)
Individual Ministerial Responsibility (IMR)
182
What are the 2 components of the CMR convention?
Minister discussions in cabinet should be confidential
Once policy line has been reached, ministers should maintain a united front (unanimity)
183
What should a minister do if they can't maintain unanimity due to conscience?
Resign as minister
184
What is the purpose of the united front?
So that parliament has confidence in the government
185
What happens if a vote of no confidence is passed?
The government should resign
186
What does the IMR convention regulate?
How ministers should react if there has been a problem or failing in their department
187
What 2 considerations determine whether a minister should resign for failings in their department?
Degree to which minister was personally aware/involved/responsible
Whether the failing was operational (fault of civil servants) or policy-based (ministers fault)
188
What is the ministerial code?
It reflects the spirit of the twin conventions
189
Is the ministerial code a convention?
No, it is soft-law as it is not enforceable in court
190
Who is the ultimate arbiter of the ministerial code, who can help decide whether a minister should resign?
The prime minister
191
What are the 7 principles of public life determined in the ministerial code?
Selflessness
Integrity
Objectivity
Accountability
Openness
Honesty
Leadership
192
What 2 conventions relate to the judiciary?
Judges must not be politically active
Parliament must not criticise the professional conduct of judges
193
What will happen if there is a conflict between the law and conventions?
Law will prevail
194
Will conventions be enforceable if acknowledged in legislation?
No
195
What did Montesquieu believe about the separation of powers?
If there is no separation, there can be no liberty or constitution
196
What is the best example of where powers aren't separated between the executive and legislature?
Government ministers are also MP's
197
How does the executive contribute to making laws?
Proposes primary legislation to be considered by parliament
Drafts secondary legislation
198
How does the legislature contribute to making laws?
Decides whether executive proposals become law
Individual MPs can also propose primary legislation via Private Members bills
199
How does the judiciary 'make law'
Interprets parliaments intentions
Develops the common law
200
What constitutional principle did Shaw v Director of Public Prosecutions develop?
House of Lords held that courts had residual power to enforce supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the state
201
What 2 key points about judicial law making did Gillick develop?
Judges in the most senior courts are often required to make decisions in the absence of any explicit statutory or common law authority
A feature of the common law is that it develops with the changing political and cultural climate
202
What happened in Airedale NHS Trust?
Court granted a declaration to allow withdrawal of treatment to somebody who was in a vegetative state due to the difference between acts and omissions in the law of homicide
203
What criteria were developed in Gillick?
Gillick competence
Whether a minor is competent to consent to medical treatment
203
What did the courts overturn in RvR?
That husbands could not rape their wives
204
What did Airedale NHS Trust emphasise the importance of?
That where a case raises wholly new moral and social issues, judges shouldn't seek to develop law reflecting their own moral stance when society as a whole is substantially divided on the relevant moral issues
205
What happened in the Burmah Oil case?
Oil fields in Burma were destroyed by British forces during the second world war. Law Lords decided compensation should be paid to Burmah Oil... Parliament passed the war damage act and exempted the Crown from paying compensation for property damage or destruction in war
206
What are the 3 levels of delegation over subordinate legislation?
No scrutiny
Negative instruments
Affirmative instruments
207
What is a negative instrument?
An instrument that can become law without a debate or vote in parliament... they can be opposed and in theory rejected but not amended by parliament
208
What overlap is there in terms of judicial functions of the executive?
Home Secretary has some minor sentencing powers the conventionally shouldn't really be exercised
209
Are tribunals administered by the executive?
No, that stopped in 2007
210
What is the attorney generals main role?
Chief legal advisor to the executive
210
What threat does the Attorney General pose to the separation of powers?
They are an MP but they also advise on the law so there is a problem of overlap with the judiciary
Legal advice to the government should probably be independent
211
What did the Lord Chancellor do pre-2006 constitutional reform act?
Was head of judiciary, speaker or president of house of lords and also had a cabinet post and did all the judicial administration
212
What does the Lord Chancellor do post-2006 constitutional reform act?
No longer head of judiciary or speaker/president of house of lords
Still has cabinet post
Renamed Secretary of State for justice... manages the executive administration of justice system
213
What act solidified the independence of the judiciary?
The constitutional reform act
214
Can the Lord Chancellor and other Crown ministers seek to influence judicial decisions?
No
215
Do judges have security of tenure?
Yes
216
Which judges have security of tenure?
Crown
High court
Court of appeal
217
When can a judge be dismissed?
During 'bad behaviour' by the monarch following an address presented by both houses of parliament
218
What is the statutory retirement age for judges?
70
219
Can full-time judges sit in the house of commons?
No
220
Can courts inquire into proceedings in Parliament?
No
221
Are judges immune from legal proceedings?
Yes, as long as whatever it is they did was in a court of justice
222
Are magistrates liable in civil law?
Only for acts outside their jurisdiction if they acted in bad faith
223
What are the 2 purposes of judicial review?
Prevent abuse of power by the executive
Uphold individual rights
224
What does judicial review technically examine?
The legality of a decision
225
Can judges generally review primary legislation?
No
226
In what 2 exceptional circumstances, can judges review primary legislation?
Where the act was inconsistent with EU law or retained EU law
If the Act of Parliament is incompatible with the ECHR they can make a declaration
227
Can judges challenge secondary legislation?
Yes
228
Is anything truly non-justicible in the modern era?
No, the modern view is most things are reviewable, but there can be a very light touch
229
When did Wales join the UK?
1535-1542
230
When could the beginnings of the UK be traced back to?
1707, when Scotland joined
231
What acts joined Ireland to the rest of the UK?
The acts of union
232
When did Ireland join the UK?
1801
233
What are all the devolved powers?
Scottish Parliament/Government
National Assembly for Wales/Welsh gov
Northern Ireland Assembly/Executive
234
What is devolved legislation?
Legislation produced by the three devolved parliaments that cannot be created without the powers granted by an act of UK Parliament
235
What is a devolved matter?
An area of government where decision making has been delegated by the UK parliament to a devolved administration
236
What is a reserved matter?
Decisions made by Westminster, even though they have effect in Wales, Scotland and Northern Ireland
237
What are good examples of reserved matters?
Immigration, defence, foreign policy
238
How does money go to the devolved powers?
The power belongs to HM Treasury... they give budgets for free spending to the devolved powers
239
How is funding for devolved administrations determined?
Spending reviews
240
What is the memorandum of understanding?
A series of non-legally binding principles which underlie relations between the devolved administrations and the UK
241
What 4 things does the joint ministerial committee do?
Consider non-devolved matters which impinge on devolved responsibilities
Discuss respective treatment of devolved matters within their administrations
Keep arrangements for liaison between the UK government and devolved administrations under review
To consider disputes between the administrations
242
Can the UK legislate on devolved matters in Scotland?
Yes, if it wants to but it doesn't by convention
243
Is wales a separate legal jurisdiction from England?
No
244
Can the UK legislate in wales if it wants to?
Yes, but it doesn't by convention
245
How should the UK go about legislating in a devolved power when they shouldn't by convention?
Seek a legislative consent motion
246
Does the supreme court have jurisdiction over the devolved powers?
Yes
247
What key role does the supreme court play regarding the devolved powers?
It rules on whether they have exceeded their scope
248
What is the formal school of thought on the rule of law?
Legal procedure must be clear and certain
Law must be prospective
Law must be clear
Law should be applied equally
Judiciary must be independent
Moral content of laws is not determinative of whether the rule of law can be said to exist in a certain jurisdiction
249
What is the substantive school of thought on the rule of law?
Same formal requirements from the formal school of thought
plus
Without respect for fundamental human rights and freedoms, the rule of law cannot be said to exist
250
Is the rule of law officially defined somewhere?
No
251
What are Lord Binghams 8 fundamental principles of the rule of law?
1. Accessible, clear and predictable
2. Legal issues should be resolved through legal processes
3. Law apply equally to all
4. Law protect human rights
5. Legal access without inordinate delay or expense
6. Public officials should exercise powers in good faith, within their limits
7. Legal and adjudicative processes should be fair
8. State should comply with its obligations under international law
252
What is the legality principle?
Parliament cannot be seen to have intended to restrict important rights and freedoms unless this is made clear
253
Can the courts review primary legislation?
No
254
Can the courts assess whether public bodies have complied with provisions in an Act?
Yes
255
Can courts assess whether devolved legislation has been made in accordance with powers granted under the parent act?
Yes
256
Can the courts review whether the gov has breached a common law constitutional right or has lawfully exercised a prerogative power?
Yes
257
What is legal certainty?
Fundamental feature of ROL
People in society should be able to know what they can and cannot do
258
What are the exceptions to equality before the law?
Monarch
Judges in higher courts can't be sued for their in-court actions
Parliamentary privilege
Diplomatic immunity
Children
259
Can parliament override fundamental rights?
Yes, as long as they do so clearly and specifically the judiciary won't be able to say anything
260
Can the UK derogate from the ECHR?
Yes, but only in accordance with the law
261
Would the court defer jurisdiction or give light touch when asked to review whether or not a public emergency existed?
Yes
262
How do the ROL and discretionary powers interact?
The ROL helps to control the exercise of discretionary power
263
In recent years has the judiciary been more or less willing to review discretion?
More willing
264
Is the judiciary likely to defer if statute says 'if x has reasonable cause to believe' or would they require some proof or evidence?
Liversidge is now widely criticised as too much deference, reasonable belief would likely require at least some evidence as seen in Inland revenues
265
In judicial review, is reasonable cause to believe more likely to be reviewed as an objective or subjective test?
Objective
266
What is the Padfield principle??
Failure to exercise discretion at all, if granted by statute, is potentially unlawful
267
Finish this sentence..
For the exercise of discretion to be lawful...
it must not frustrate the policy of purpose of the statute which contains the discretionary power
268
Does the rule of law require that discretion is constrained to some degree?
Yes, otherwise it would be completely legally unfettered
269
What are 2 examples of how discretion is constrained?
Sentencing guidelines
Defendants right of appeal to a senior court
270
What does Lord Bingham think about the volume of legislation that there currently is?
It threatens the first element of the ROL, that the law should be accessible, clear and predictable
271
Does the current publicly available law resources such as legislation.gov do a good job of upholding that law should be accessible, clear and predictable?
No, it isn't up to date, and most lay people don't have access to Westlaw etc
272
What does Lord Bingham think about dissenting judgements and the ROL?
That as long as the majority judgement is clear the ROL has been upheld
273
What does Lord Bingham think about when the Court of Appeal and Supreme Court don't come to a clear decision?
They have failed to perform its duty in accordance with the principle of accessibility and certainty
274
Does Lord Bingham think that the ROL can be upheld if the moral content of laws are unconscionable?
That the ROL inherently encompasses concepts of fairness/justice... if laws are for example, 'savagely repress' then it cannot be said to reflect the ROL
275
What is the biggest bar to obtaining justice?
It is expensive
276
Is the right of access to the courts inherent to the ROL?
Yes
277
Why is it a problem for ROL if people are only willing to pursue cases that win?
Because it stifles the development of the law
278
Is the right to a fair trial a requirement of the ROL?
Yes
279
What 3 threats to the right to a fair trial have been identified by the campaigning organisation Liberty?
Fast-track extradition treaties
Anti-Social Behaviour orders and other civil orders which blur criminal and civil law
Secret courts and secret evidence in the name of National Security
280
How does AI and automated decision making pose a threat to the ROL?
Because it is impossible to appeal a decision made by an algorithm if you can't know what factors were taken into account or what the reasoning was
281
What is the supreme form of law in the UK?
Acts of Parliament
282
What are the 3 basic rules of parliamentary sovereignty according to Dicey?
1. Parliament is the supreme law making body
2. No parliament may be bound by a predecessor or may bind a successor
3. No person or body may question the validity of an Act of Parliament
283
Are there any legal limitations on what types of laws parliament can make?
No
284
Would it be illegal if parliament enacted laws contrary to the Geneva convention?
No, parliament is supreme
285
Can parliament legislate for territory beyond the jurisdiction of the UK, even if it produces a conflict with international law?
Yes, it is supreme
286
Can parliament pass retrospective laws?
Yes, famously the War Damage Act
287
What is express repeal of a law?
Legislation specifically states its intention to replace an earlier act
288
What is implied repeal?
If a new act is wholly inconsistent with a previous act then the previous act is repealed to the extent of the inconsistency
289
What will happen if statute attempts to entrench itself?
The entrenchment clause will not be upheld
290
Is the substance of law reviewable by the courts?
No
291
Can the judiciary review procedural irregularities in how statute came to be enacted?
No
292
What is the orthodox Diceyan view of entrenching laws by manner and form?
That this requirement would not be binding on a successor Parliament
293
Has entrenchment in manner and form ever been upheld by the judiciary?
Yes, in Australia (these acts had been created by the UK) where the abolition of the upper chamber was said to require referendum approval..
However this was technically a subordinate legislature
294
What is the 'referendum lock' in the context of the EU?
The European Union Act 2011 tried to say a referendum needed to be held before further amendments could be made to the founding Treaties of the EU
It was never tested
295
In the current day, is parliamentary sovereignty diminishing or expanding?
Diminishing
296
How are ouster clauses likely to be interpreted by the courts?
They will do whatever they can to bend interpretation so as not to uphold them
297
Why does the UK incorporate international law into its own domestic laws?
Because UK parliament is supreme, even over international laws so it must incorporate to be safely bound
298
What was incorporated into UK law via the European Communities Act?
The Treaty of Rome
299
Which treaty established the European Union?
The Maastrict treaty
300
How did EU law threaten parliamentary sovereignty?
It said that EU law was supreme over domestic law
301
What does the primacy of EU law mean?
EU law was supreme over UK law
302
How did it come to be that EU law was supreme over UK domestic law?
Because the UK subscribed to principles laid down by the ECJ, and a case there stipulated that EU law cannot be overridden by national law
303
Did the European Communities Act impliedly repeal/override statutes that weren't compatible with EU law?
Yes
304
Regarding implied repeal of statutes prior to the European Communities Act, why was this ok for the rule of law?
Because its the same as any other implied repeal.. it is the choice of the sovereign parliament to subscribe to those new laws
305
Did the European Communities Act state that any UK statutes enacted after it, that were incompatible with EU law would have effect subject to EU law?
Yes
306
Why was the ECA problematic for parliamentary sovereignty?
Because it ran counter to the principle that parliament cannot bind itself by stating that the ECA would hold over subsequent acts of parliament if there were discrepancies
307
What presumption did the courts make in order to maintain allegiance to parliamentary sovereignty despite difficulties presented by the ECA?
Parliament clearly intended to draft new legislation to be compatible with EU law so inconsistencies would be an error of the draftsman
308
Why did Factortame No2 threaten parliamentary sovereignty??
Because for the first time, the house of lords, with advice from the ECJ, suspended an act of parliament (going against it) in favour of EU law
309
Why did some people say Factortame No2 wasn't a true hinderance on parliamentary sovereignity?
Because parliament had voluntarily signed up to a limitation on its own sovereignty
310
Why were the obiter points in Thoburn made by Laws LJ so significant?
Because Laws LJ said that Factortame had created an exception to the doctrine of implied repeal
Ordinary and constitutional statutes were distinguished for the first time
311
Why does constitutional statues conflict with orthodox Diceyan view?
Because it means not all statutes are equal
312
Post-Brexit, what is the prevailing view on how Parliament can bind itself?
It can bind itself to something like the EU, for as long as it wishes to be bound by it.
It is still sovereign, because it can remove those limitations
313
What is the royal prerogative?
Residue of discretionary or arbitrary authority which is legally left in the hands of the Crown
314
Who used to own and exercise all the prerogative powers?
The Monarch
315
Can prerogative powers be replaced by statutory powers?
Yes
316
Can prerogative power be expanded?
No
317
What are the 3 broad types of prerogative power?
Ministerial/executive
Monarchs constitutional prerogatives
Crowns legal prerogatives
318
What are the 3 main broad executive prerogative powers?
Foreign affairs
Armed forces/emergencies
Judicial mercy
319
What important government functions are under the 'foreign affairs' power?
Recognising other sovereign states and their representatives
Making and ratification of treaties
Diplomacy
Passports
Governance of British Overseas Territories
320
Is approval of parliament required for treaties?
No
321
What is meant by the prerogative of mercy?
Home secretary can issue pardons to those convicted of criminal offences
322
What personal prerogatives of the monarch still technically exist?
Appointing the prime minister
Assent to legislation
Right to prorogue parliament
323
What are the remaining legal prerogatives?
Crown is not bound by statute unless express words are used or it is obviously inferred
Immunity from some litigation -- e.g., Crown cannot be in contempt of the court and sovereign is immune from being sued or prosecuted
324
In what 4 ways can prerogative power be controlled?
Application of public law (judicial review of jurisdiction)
Political pressure and public life
Overriding effect of statute (legislation trumps the prerogative)
By changes to convention over time
325
How is crown power legitimated?
Through recognition in the common law
326
When could a prerogative power not be said to exist?
When it hasn't been accepted by the courts, there is no precedent
327
Were the courts historically able to adjudicate upon or review what the scope of a prerogative power was?
Yes
328
What is the De Keyser principle?
Statute is supreme over prerogative powers
329
What was the principle outlined by Miller 1?
Leaving the EU couldn't be triggered by prerogative power when the effects and consequences were so significant
Had to be sanctioned by primary legislation
330
When did the courts feel prepared to review HOW the government used its prerogative powers for the first time?
GCHQ
331
What happened in GCHQ?
Margaret Thatcher tried to ban trade union membership at gov listening base in Cheltenham using her power to regulate the working terms and conditions of the Civil Service
Courts held she had the power, but the manner in which she used it was reviewable
332
What was the rationale behind the judgement in GCHQ?
Whether the power came from the prerogative or statute, either way the judiciary is challenging the manner of exercise by the executive which is not an act of sovereign
333
What was the outcome of GCHQ?
Ultimately, Thatcher won by saying it was in the justifiable public interest not to consult in advance of her use of the power
334
What are the main prerogative powers that aren't amenable to the judicial process?
Making treaties
Mercy
Dissolution of Parliament
Defence of the Realm
Granting of Honours
Appointment of ministers
335
Is the manner of the exercise of prerogative power just as reviewable as the way statutory powers are exercised?
Yes
336
Is the remit of judicial review expanding or diminishing over higher policy prerogative powers?
Expanding
337
Is reviewing passport denial likely to be within the remit of judicial review?
Yes
338
What does it mean that judges will look at the substance/nature of an issue surrounding prerogative powers to decide if it is justiciable?
They won't look at the source of the power e.g., the Crown
They'll look at the substance of the power e.g., the executive is making decisions about passports which is more of an executivey-type administrative activity is implemented not a Crown high policy one
339
In what capacity has the prerogative power of mercy been judicially reviewed?
Not whether a mercy should have been granted
But whether a mercy was capable of being granted in that circumstance (e.g., a conditional mercy was also possible)
340
Has legitimate expectation of diplomatic assistance been reviewed by the courts before?
Yes, but with a light touch
341
What did the courts say was a reviewable matter of higher policy (diplomatic assistance)
That the applicant had the right to at least be considered, and the courts could examine whether or not the foreign office at at the minimum considered the applicants predicament in light of all relevant factors
342
Are military actions non-justicable?
Yes
343
Are operational military issues justifiable?
Yes
344
What type of operational military issues might be justicible?
Provision of military equipment and training
345
When will military issues be justiciable?
When failings are remote from the pressures and uncertainties of the battlefield
346
Would dismissal from the armed forces be a justiciable issue?
Yes, where employment/career prospects are at issue alongside the rights of citizens
e.g., dismissal for being gay
347
What 3 European communities eventually lead to the EU?
European coal and still
European economic
European Atomic Energy
348
When was the EU established?
1993
349
What Act gave EU law effect in the UK?
The European Communities Act 1972
350
What Act withdrew the UK from the EU?
European Withdrawal Act EUWA 2018
351
What are the 6 main sources of EU law?
Primary sources: EU treaties
Second sources: regs, directives, decisions
Tertiary acts
Case law
International agreements (treaties)
Non-binding acts
352
What are the 2 primary EU treaties?
Treaty on the Functioning of the EU (TFEU)
Treaty of the EU (TEU)
353
Is the ECHR an EU treaty?
No, it is overseen by a completely different organisation with many members that are not even in the EU
354
What does it mean if an EU regulation is directly applicable?
That the regulation applies to the member state without those member states having to enact their own legal measures to implement or give effect to them
355
Who is an EU directive binding on?
To each member state which is addressed in it
356
What scope of power is left to the member states included in an EU directive?
They have to follow the directive, but have choice as to the form and methods
357
What is the deadline to implement an EU directive if no deadline is specified?
20 DAYS
358
What is the standard specified EU directive deadline?
2 years
359
Who are EU decisions binding on?
Whoever it addresses
360
When will an EU decision be considered to be secondary legislation
If it was adopted using a legislative procedure
361
What are the 2 forms of EU tertiary act?
Delegated Act (EU secondary legislation which delegates power to the european commission to adopt delegated acts to supplement to amend that secondary legislation)
Implementing Acts: legally binding EU acts gives european commission power to adopt acts for implementing binding EU acts where uniform conditions for implementation are needed
362
What are the 2 principle EU courts?
European court of justice
General court
363
Is the European Court of Human rights an EU court?
No, ECHR has nothing to do with the EU
364
What does it mean when a National court makes a preliminary reference to the European Courts?
Court of justice makes a preliminary ruling, the case then returns to the national court to apply the ruling from the court of justice
365
Does the EU have legal personality?
Yes
366
Can the EU enter into international agreements and bind member states?
Yes
367
What types of EU acts are non-binding or soft law?
Recommendations
Opinions
Communications
Declarations
Notices
Programmes
Resolutions
368
Will EU law take effect over constitutional law of member states?
Yes
369
Is the effect of primacy of EU law to void, invalidate or disapply contradictory national law?
Disapply
370
What currently governs EU law in the UK?
The withdrawal agreement continues to provide for some EU law in the UK
The rest of EU law which is no longer preserved by the withdrawal agreement is now governed by a separate legal regime
371
What is the Windsor framework?
There is still an open border between Northern Ireland and the Republic of Ireland after EU withdrawal
372
Can UK courts still disapply UK statutes that conflict with EU law? *IN TRANSITION PERIOD
Only that EU law which is preserved by the withdrawal agreement after the end of the transition period
373
What UK law is still interpreted in conformity with the case law of the Court of Justice? *IN TRANSITION PERIOD
Withdrawal agreement provisions and any EU law preserved by them
374
To what extent must conformity with case law from the Court of Justice be maintained for cases decided outside of the transition period regarding EU status contained within the withdrawal agreement? **IN TRANSITION PERIOD
Due regard only
375
For what matters can the UK courts continue to make preliminary references to the Court of Justice?
For the rights of EU citizens and their family members in cases commencing 8 years before the end of the transition period
In relation to EU law preserved by the protocol in Northern Ireland
376
What 2 categories of legislation continue to have effect in the UK post EU?
EU-derived domestic legislation
Direct EU legislation (any EU reg still in force b4 the end of the transition period)
377
What is post-transition retained EU law also referred to as?
Assimilated law
378
Does the term assimilated EU law apply to law retained by the EUWA 2018?
No
379
Does the principle of supremacy of EU law still apply in relation to the assimilated direct EU law?
No
380
What interpretative obligation do the courts currently have in relation to assimilated direct EU legislation?
To interpret in a way that is compatible with domestic enactments so far as it is possible to do so
381
What happens if UK courts cannot currently interpret assimilated direct EU legislation compatibly? What approach should they take?
EU assimilated law will be subject to domestic enactments
E.G., domestic overrides is
382
When does direct EU assimilated law take precedence over UK law?
When the government specifies that a provision in legislation is to be excepted
383
What interpretative obligation to UK courts have for direct assimilated UK law when governments have specified that primacy of EU law should continue for that provision?
To read and give effect to UK law in a way that is compatible with the assimilated direct EU legislation
384
What if the UK courts cannot read assimilated direct EU legislation in a way that is compatible with UK law?
Domestic enactment will be subject to the assimilated direct EU legislation such that EU overrides
Issue an incompatibility order
385
What might the contents of an incompatibility order for domestic law and direct assimilated UK law contain?
1. Explain the effect of the provision
2. Delay the coming into force of the incompatibility order itself
3. Remove or limit any effect of the operation of the relevant provision before the coming into force of an order
386
Can both primary and secondary legislation amend assimilated EU law?
Yes, but secondary is subject to conditions
387
What extra powers did the EUWA 2018 and the REULA 2023 provide government ministers regarding EU law?
They can make regulations to deal with deficiencies in assimilated EU law
They can restate, reproduce, revoke or replace assimilated EU law
They can update EU law
388
When will government ministers no longer have powers to restate, reproduce, revoke or replace assimilated EU law?
23 June 2026
389
What EU case law has been assimilated?
That which existed at the end of the transition period
390
Is the Supreme Court still bound by retained EU case law?
No
391
Are the UK courts and tribunals still able to make preliminary references to the Court of Justice on questions of assimilated EU law?
No
392
Is the Court of Appeal still bound by assimilated EU case law?
No
393
Is the Court Martial Appeal court still bound by assimilated EU case law?
No
394
What test do the courts currently have to use to decide whether to depart from assimilated EU case law?
Same as supreme court
395
In future, how will the test of whether to depart from assimilated EU case law change?
Courts will have to have regard to:
- fact that decisions of foreign court are not binding
- changes of circumstances which are relevant to the retained EU case law
- extent to which the assimilated EU case law restricts the proper development of domestic law
396
In future, something will replace the power to make preliminary references to the Court of Justice in relation to assimilated EU law, what is it?
Courts and other law officers can make references to the supreme court and other domestic appeal courts
397
Can assimilated EU law be amended by legislation?
Yes
398
Are the supreme court and court of appeal bound by case law decided before the end of the brexit transition period?
No
399
Under a dualist system, when is international law enforceable against the UK state?
When a claim is made in an international court
When the UK has incorporated international rules into domestic law
400
What is the purpose of the HRA?
Incorporates ECHR into domestic law
401
What is the constitutional effect of the HRA?
Creates a positive statement of values as a key part of the UKs constitution
402
Prior to the HRA, why did the UK continue to be publicly embarrassed?
B/C all their human rights cases were aired in public in the ECtHR because they weren't enforceable within the UK
403
What is Article 1?
ECHR seeks to protect civil/political/some social rights by requiring all contracting states to secure the specified rights and freedoms for their people
404
What does article 15 apply to?
Derogations
405
What does article 57 apply to?
Reservations
406
What does articles 2-14 ECHR cover?
Lists the freedoms and rights
407
What rights are absolute
3: Torture
4: slavery and forced labour
7: no punishment without lawful authority
408
Which rights are limited?
2: life
5: liberty and security of person
6: fair trial and fair legal process
409
Which rights are qualified?
8: private and family life
9: thought, conscience and religion
10: expression
11: assembly and association
410
Which 3 requirements must be met for the state to interfere with a qualified ECHR right?
Must be prescribed by or in accordance with law
Pursuit of legitimate aim
Necessary and proportionate in democratic society
411
Do UK courts have to take relevant ECtHR caselaw into account when interpreting the HRA?
Yes
412
What is meant by a positive obligation in relation to the state and human rights?
Duty to prevent the violation of human rights actively
413
Does the state have to take preventative measures to protect an individual whose life is at risk from the criminal acts of another private individual?
Yes if:
They knew or ought to have known that there was a real and immediate risk and they failed to take measures which judged reasonably could have avoided that risk
414
What is the limit on positive obligation?
Excessive burden
415
What is the margin of appreciation doctrine?
That the primary responsibility for the protection of human rights lies with the contracting parties themselves, thus, they have some discretion because they know their country best
They are subject to supervision by the ECtHR
416
What is the Principle of Proportionality in the context of ECHR?
Search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individuals fundamental rights
417
Is it unlawful for public authorities to act in a way that is incompatible with Convention rights?
Yes
418
What 3 interpretative obligations do the courts have in relation to human rights law?
In determining legal questions, courts must take into account relevant ECHR case law from the ECtHR
Legislation must be read in a way that is compatible with ECHR rights
If not compatible, court may make a declaration of incompatibility
419
What is the mirror approach?
| HRA/ECHR
While ECtHR is not binding, UK courts should mirror their decisions
420
In what circumstances will the mirror approach be disregarded?
| HRA/ECHR
When Strasbourg decisions don't appreciate or accommodate aspects of our domestic process
421
What statutory defences exist for a public authority acting in a way which is incompatible with a convention right?
* If it is required by primary legislation
* if it is acting to give effect to or to enforce incompatible primary or subordinate legislation
422
What 3 types of bodies are recognised as public bodies?
| hra/echr
Core public
Hybrid/functional
Private bodies
423
What types of bodies are core public authorities?
Central gov departments
HMRC
Police
424
What types of bodies are functional/hybrid public authorities?
A body that is private in nature but performing a public function
Housing associations, care homes
425
What factors will the court consider in determining whether X is carrying out a function of a public nature?
Public funding
Exercising statutory power
Taking the place of central gov/authorities
Providing a public service
426
What 2 things must an applicant show to bring a claim under HRA?
1. They are against a public authority
2. They have standing to bring the claim
427
How can you have standing for an HRA claim? What is the test?
Victim test: anyone who is claiming to be a victim of a violation
**must also be directly effected by the violation
428
Can corporations make an HRA claim?
Yes
429
What type of entity do you have to be to bring an HRA claim?
A person -- natural or legal
430
When can an organisation/group bring an action under HRA?
Only when their rights as an organisation have been violated
431
What is the deadline to commence an HRA claim?
1y of the date of the act complained of
432
Can the deadline for an HRA claim be extended?
Yes, if the court considers it equitable in all circumstances
433
If an alleged violation is ongoing, when does the clock start running for the deadline to apply for an HRA violation?
When the violation stops
434
Are HRA claims within a wider judicial review application subject to JR time limits or HRA time limits?
JR
435
Is Westminster Parliament excluded from liability under the HRA?
Yes, to protect parliamentary privilege and sovereignty
436
How far can courts go in interpreting legislation to be compatible with HRA?
Very far, they are under a duty to try and find a way to twist words basically
But must not cross boundary between interpretation and amendment
437
When will UK courts refrain from taking a lot of liberty in interpreting UK statute as human rights compatible?
When it would bring a major change in law with far-reaching consequences
438
Can a court read words into legislation to be HRA compatible and change the ordinary meaning of legislation?
Yes
439
In what 5 circumstances did the law lords says that their interpretative power for human rights compatibility would go too far?
Changes the substance of provisions completely
Runs counter to a fundamental feature of the legislation
Contradicts provisions in the legislation
Repeals or deletes language used
Court ends up making decisions for which it is not equipped
440
What 5 liberties are courts willing to take to interpret a provision as human rights compatible?
Interpret in other ways even if language is clear
Adopt a linguistically strained interpretation
Read down (adopt narrow meaning)
Read in words/imply provisions
Make the declaration of incompatibility a last resort
441
What is a section 3 interpretation?
To be compatible with human rights law
442
Is a declaration of incompatibility binding?
No
443
Does a declaration of incompatibility effect the continuing operation of the provision?
No
444
Does the court have to make a declaration of incompatibility?
No
445
Are ministers legally required to change legislation after a declaration of incompatibility?
No
446
How does the constitution catalyse the statutory defence to the HRA?
It means that legislation will trump the convention so the public authority has a defence if they were prevented from doing smth because of an Act
Parliamentary sovereignty reigns supreme
447
What will happen if a public body tries to rely on an act of parliament as a statutory defence to HRA violations but the court is able to read it compatibly?
The defence will disappear, liability is incurred
There will be a remedy for the applicant
448
What happens if the public body uses the first statutory defence in an HRA claim and the court can't use its s.3 power?
They can make a declaration of incompatibility
There will be no remedy
Claimant can go to ECtHR
449
Explain the process of domestic enforcement of human rights claims?
450
What remedies are available for human rights claims?
1. Any relief, remedy or order which is just and appropriate/within judge powers
2. Damages, declarations, injunctions, quashing orders, prohibitory orders, mandatory orders
451
What is the standard expedited remedial action the government can take after DOI?
Draft amending order laid before parliament for 60 days before being approved by the houses
452
What is the urgent expedited remedial action the government can take after DOI?
Order may be laid before parliament for approval after it is made
453
Does a human rights victim have to be a national of the state concerned?
No, just anybody within jurisdiction at that time
454
Will ECHR jurisdiction ever extend extra-territorialy?
It can, if there is sufficient control by the state in that extra-territorial jurisdiction
e.g., diplomats, military occupation of an area
455
Which rights can not be derogated from?
2: Life (except deaths from lawful acts of war)
3: Torture
4: Slavery and forced labour
7: No punishment without law
456
When can a state derogate from ECHR?
Public emergency threatening the life of the nation to extent that is strictly required
457
Is the death penalty allowed in the ECHR?
No
458
In what 3 circumstances is deprivation of life not a contravention of ECHR?
Defence of any person from unlawful violence
To effect lawful arrest or prevent escape of a person lawfully detained
In action lawfully take to quell riot or insurrection
459
Is article 2, right to life an absolute right?
No
460
What is article 2?
Right to life
461
What limits on the exceptions to the rights to life exist?
The use of force must be no more than absolutely necessary and proportionate to achieve a legitimate aim
462
What duty is said to be imposed on the state by article 2?
Investigative duty for all situations where the state directly takes a life
463
Does the duty to extend go extra-territorially?
Yes
464
Is there a duty to investigate a death caused by a third party not state agents?
Yes
465
Is there a duty to investigate a death caused by a third party who aren't state agents if there has already been a criminal investigation and internal investigation?
Yes, investigation must be:
Public
Independent
Involve full participation of the family
466
What 3 characteristics must an investigation have to fulfil the duty imposed under article 2?
Public
Independent
Involve full participation of the family
467
What positive obligations are imposed on the state by article 2?
Have criminal justice systems which punish and deter homicide
Take preventative measures to protect individuals when their life is at risk from:
- homicide
- suicide
467
When will positive obligations with regard to article 2 be triggered?
If they knew or ought to have known about a real and immediate risk
468
Is withdrawal of treatment for a patient in persistent vegetative state a breach of article 2?
No, there is no obligation to prolong life when prognosis is very poor
469
Can the state be liable if a mental patient commits suicide?
Yes, if they knew or should have known there was a real risk
470
Is article 3 an absolute right?
Ys
471
What is article 3?
Torture
472
What factors are taken into consideration when trying to determine whether treatment was inhumane/degrading?
Nature/context
Manner of execution
Duration
Physical and mental effects
Impact positive and negative on health of person
473
What is the definition of torture?
Aggravated, deliberate and cruel form of treatment or punishment
474
Do the courts construe torture widely or narrowly?
They try and preserve the oomf of the word torture, and unless something is clearly torture they will label it inhumane/degrading treatment
475
Would failure to release a prisoner on a life sentence for chemotherapy at a hospital amount to inhumane treatment?
No
476
Is the positive obligation for torture absolute?
No, only the negative one
477
When will the claimant be able to establish a claim under a positive obligation for article 3?
When the authorities knew or ought to have known of his risk of article 3 breach
478
Historically, was the death penalty allowed under ECHR?
Yes
479
What is the extra-territorial effect of article 3?
You can't deport somebody if doing so will put them in jeopardy of an article 3 violation
480
What is the extension of the extra-territorial effect of article 3?
You can't deport someone if they are likely to face an article 3 violation by non-state actors
481
Is there an investigative duty under article 3?
Yes
482
Are the factors to determine ill-treatment under article 3 objective, subjective or both?
Both
483
What is article 5?
Liberty and security of the person
484
Is a restriction on liberty engaged by article 5?
No, it has to be a deprivation
485
What factors will the court look at to determine the difference between restriction and deprivation of liberty?
Concrete situation of the person
Type
Duration
Effects
Manner of implementation
486
Is restriction distinguished from deprivation by examining degree and intensity or nature and substance?
Degree and intensity
487
When is kettling not an article 5 breach?
Proportionate
Not imposed arbitrarily
Least intrusive/most effective way to control
To avoid real risk of serious injury/damage to property
488
What 2 conditions must be satisfied such that there won't have been an article 5 breach?
Prescribed by clear, predictable law (CASE OR STATUTE)
Be justified by one of the limitations provided for in the ECHR
489
What is the 'Sunday Times Test'
That for a deprivation of liberty to be lawful it must be:
Prescribed by law (CASE OR STATUTE)
With sufficient precision for the citizen to regulate his conduct and foresee the consequences
490
Will stop and search be a deprivation of liberty if officer can do it on a hunch or intuition?
Yes probably
491
Will stop and search be a deprivation of liberty if an officer can do it on reasonable suspicion?
Probably not
492
What is the most important limitation for when the state CAN deprive liberty under the ECHR?
Arrest and detain
493
What 2 criteria must be fulfilled to arrest and detain in line with the ECHR?
Reasonable suspicion
When reasonably considered necessary to prevent committing an offence or fleeing after
494
Is short-term detention of a person outside criminal proceedings allowed?
Yes, for the purpose of preventing a concrete and specific offence
495
What does article 5(1) say?
Provides the basic substantive right to liberty and the circumstances when the state can lawfully deprive persons of their liberty
496
What does article 5(2) provide?
Right for persons to be informed of reasons for their arrest
497
What does article 5(3) provide?
That a person who has been arrested and detained shall be brought promptly b4 a judge
498
What does 5(4) provide?
That a person deprived of their liberty shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by the court
499
What does 5(5) provide?
Enforceable right to compensation for a victim of an article 5 breach
500
Does reason for arrest have to be given at the exact time of arrest?
No, reasonable time frame is fine
501
What is the general length of time a terrorist can be detained without seeing a judge?
4 days, but it can be less -- depends on the case
502
Does a magistrates court have the authority to authorise lawfulness of detention?
Yes
503
How long is short-term detention to prevent an offence likely to be deemed lawful?
Hours rather than days
504
Can delays of a parole board review amount to a violation of 5(4)?
Yes
505
How far apart can reviews of detention be before they are considered unlawful?
Member states have discretion, but longer than a year is likely to be unlawful
506
Does article 5(5) (compensation) apply in the UK?
Not usually, because HRA sets out remedies in S8. Only applies in ECtHR
507
What does article 6 provide for?
Fair trial by independent impartial tribunal established by law
508
What does article 6(2) provide for?
Presumption of innocence
509
What does article 6(3) provide for?
Set of minimum rights owed to everyone charged with a criminal offence, including access to legal rep
510
Does the right to fair trial apply civil, criminal or both?
Both
511
What is the minimum that constitutes as a 'trial' for a right to a fair trial?
A hearing where an independent and impartial tribunal established by law makes a determination
512
Why does article 6(1) include fair access to the courts?
Because without access to justice/fair trial, none of the other rights are enforceable
513
What are the implications of article 6(1) for legal aid?
What constitutes effective access to the courts depends on facts of each case
It might be a breach if legal aid is not offered to some people
514
What factors are relevant to the ECtHR in determining whether a tribunal was independent?
Manner of appointment
Term of office
Existence of guarantees against outside pressures
Face value of independence
515
How does the ECtHR assess whether a court is impartial under article 6(1)? (2 aspects)
1. Tribunal must be subjectively free of personal prejudice or bias
2. Must also be impartial from an objective viewpoint
516
How is 'timely process' for a fair trial determined?
Case by case
517
For criminal offences, what is the general ball-park of time that is acceptable to wait for a fair trial?
20 months
518
What 3 factors help determine how long it is appropriate to wait for a fair trial?
Complexity of case
Conduct of defendant
Manner in which the case has been dealt with by the authorities
519
Can article 6 be impeded by a preliminary investigation by the police?
Yes
520
What is a common example of an article 6 violation for preliminary police investigations?
No access to a lawyer in interview for no good reason
521
Does the right to fair trial encompass silence and the right not to incriminate oneself
Yes, that is 'fair' although it has not expressly been written in article 6
522
Can article 6 be used to prevent deportation?
Yes
523
What is the key objective of article 8?
Arbitrary interference in private life
524
What are the 4 broad protected interests under article 8?
Private
Family
Home
Correspondence
525
What type of right is article 8? (e.g., absolute)
Qualified
526
When can qualified rights be interfered with?
In accordance with the law, where there is a legitimate aim and is necessary in a democratic society
527
When will an interference in a right be considered necessary in a democratic society?
If they answer a pressing social need and are proportionate to the legitimate aim pursued
528
What does the term 'private life' encompass?
Physical and moral integrity
Personal identity (e.g., name, picture, zone of interaction of a person with others)
Respect for human dignity and freedom
Sexual orientation
529
When will searches of the person engage article 8?
If there are insufficient safeguards to protect the individual against arbitrary interference
530
When has state surveillance engaged article 8?
Before RIPA, when there wasn't sufficient tests/law to establish that article 8 had been lawfully violated
531
When will police retaining photographs of people engage article 8?
Beyond a reasonable period of time after it is apparent that an individual had not committed a crime was seen to be disproportionate
532
How is family defined under article 8 ECHR?
Broadly, it is not restricted to the traditional family unit
'Living together in order that family relationships can develop normally and family members can enjoy each others company'
533
Will partners living together outside marriage count as family?
Yes
534
Can any act that might disrupt the family unit engage article 8?
Yes
535
Could deporting a family member/splitting up family result in engaging article 8?
Yes
536
Does right to family life mean that spousal visas have to be granted?
No, it doesn't extend that far
537
Would a total ban on spouse visas to everyone under 21 result in an infringement to article 8?
Yes
538
What summary of issues is engaged by article 8?
Personal dignity
Sexuality
Searches of person
State surveillance
Marriage rights
Immigration
Abortion
539
Is the 'accordance with the law' test the same as the 'prescribed by law test'?
Yes
540
Does article 8 give a right to be provided with a home?
No
541
What is the starting point in considering the right to home?
Protection from invasion and intrusion
Maintaining a situation for which a person has become accustomed
542
When would a health authority going back on its promise to provide a disabled person a specific home, be a violation of article 8?
When the person has already become accustomed to living there and it was specially adapted for them and there was a promise they would stay forever
Emotional devastation and anti-therapeutic
543
Were random police visits to pedophile homes a breach of article 8 rights? Why?
No, there was a legitimate aim of protecting innocent people and it was conducted proportionately
544
When are unannounced home visits likely to breach article 8?
When they are:
Overly frequent
Leading to disclosure of information about the offender (e.g., to neighbours)
545
What physical characteristics are included in the right to home?
Physical area
Noise
Other nuisances e.g., smell and waste
546
Was article 8 engaged for noise produced by Heathrow airport? Why?
No, this was seen as within the states margin of appreciation, however, there was a remedy in article 13 for availability of remedies in domestic law
547
When has interception of correspondence by police for prevention and detection of crime engaged article 8?
When RIPA didn't exist, so the infringement could not be technically lawful, mitigated/controlled etc
548
Does monitoring of emails and internet usage by a public employer engage article 8?
Yes
549
In what circumstances can prison authorities open letters from a lawyer?
If there is reasonable cause to believe it contains an illicit enclosure and it is done with suitable guarantees that it will not be read
550
Can prison authorities read lawyer/client letters that they've opened?
Only in exceptional circumstances, when there is reasonable cause to believe that the privilege is being abused
551
What common law protection extends to prison correspondence with a solicitor?
There is a common law right to confidentiality over privileged legal correspondence that has existed before HRA and is spiritually the same
552
Can interference with a right be in accordance with the law, if there is no law surrounding that action?
No, there has to be a law detailing when an infringement is allowed or not
553
Can interference with a right be in accordance with the law, if the law surrounding that is unclear?
No, it has to be clear
554
How are blanket and indiscriminate policies likely to be treated by the court with regards to article 8?
The more blanket they are, the more likely they will infringe on human rights
555
What does article 10 ECHR protect?
Freedom of expression
556
What kind of limits, if any, are on article 10? (e.g., qualified, limited, absolute)
Qualified
557
Does the freedom of expression remain while the court is deliberating on the legality of curtailing it?
Yes
558
What does the freedom of expression specifically encompass? (E.G., types of communication)
Right to hold opinions
Receive ideas and information
Express views and opinions
Words, pictures, images and actions intended to express an idea or to present information
559
Does article 10 impose a positive duty on public bodies of disclosure/transparency?
No
560
Is preventing publication of interviews with terrorists possible of being banned without infringing article 10?
It is possible a ban is allowed if proportionate to the interests of national security
561
When will national security be sufficient to restrict article 10?
It has to be proportionate, prescribed by law and a legitimate aim
562
When will prevention of disorder/crime in relation to a protest engage article 10?
There has to be reasonable apprehension of a sufficiently imminent breach of peace before any preventative action has been taken
This is in addition to proportionate, prescribed by law and legitimate aim
563
Is there a wide or narrow protection for states afforded to the protection of health or morals?
Wide, the ECtHR is likely to allow states to decide what offends their health/morals
564
Does the right to freedom of expression also include the right to receive information?
Yes
565
What is one of the most common countervailing interests to freedom of expression?
Protection of reputation, defamation suits
566
Is it harder or easier for a politician to sue someone for defamation?
Harder, they are expected to have a higher tolerance
567
Does article 10 protect the substance of matters, whilst regulating the way in which ideas are conveyed?
Yes,
568
Are national laws protecting religious sensibility afforded a wide or narrow margin of appreciation?
Wide
569
What two important points must be kept in mind when considering violations of the rights of others in relation to article 10?
1. At a subnational level, e.g., some speech that is allowed in London might be morally disproportionate in other places within the same country
2. Ideas that offend, shock and disturb are protected, but you don't necessarily have a right to do so gratuitously to religious believers (infringing on their article 9 rights) without contributing to any form of public debate
570
Why were bakery owners who refused to write Support Gay Marriage on a cake not in breach of ECHR?
Because there is a difference between infringing on somebody else's free speech, and refusing to personally make a statement yourself
571
Can refusing to disclose a journalist source, in contempt of the court, be an infringement of article 10?
Yes
572
When has journalistic source disclosure been upheld?
When it related to selling confidential medical information
573
What is a super injunction?
An order which restrains publication of material and also information about the content of the order itself, and the fact that the order was made
574
What is the indirect horizontal effect of the HRA?
Because courts and tribunals are public authorities, they have to act compatibly with the convention even when interpreting cases that don't have anything to do with a public body
575
When can an action between 2 private individuals invoke a convention right?
There has to be a pre-existing cause of action to 'tack it onto'
576
What action can private parties seek when they have no pre-existing article 10 action under the ECHR?
Common law breach of confidence
577
What an does action of breach of confidence give a remedy for?
Unauthorised dissemination of personal information
578
What 3 elements need to be satisfied to bring an action of breach of confidence?
Information must have a necessary quality of confidence about it
Information must have been imparted in circumstances importing an obligation of confidence
Must have been an unauthorised use of the information
579
How is the action of breach of confidence impacted by article 10?
It might be an existing action where article 10 could be hung upon
Because courts have to interpret consistent with convention, the values enshrined in art 8/10 are now also part of an action for breach of confidence
580
What was made redundant in the breach of confidence action by the ECHR?
The requirement that there is an initial need for a confidential relationship
581
Since a need for an initial confidential relationship was made redundant in a breach of confidence action, what new cause of action has arisen?
Misuse of private information
582
What 2 tests are required to win a misuse of private information claim?
1. Article 8 is engaged if the applicant had a reasonable expectation of privacy
2. Balancing exercise between articles 8/10 and consider whether the publication was necessary
583
How will the courts establish a reasonable expectation of privacy in a misuse of private information claim?
1. Is info obviously private?
2. Would a reasonable person of ordinary sensibilities if places as the subject of disclosure find it offensive?
584
In common-law, how is nature of private information conceptualised?
Information that is personal to the possessor
Who he does not intend shall be imparted to the general public
The nature of the information, or form in which it is kept, makes it plain that the information satisfies those criteria
585
Is the common-law expectation of privacy construed narrowly of widely?
Widely
586
What factors are taken into account when determining whether there is a common-law reasonable expectation of privacy?
Claimant attributes
Nature of activity
Place of activity
Nature/purpose of intrusion
Absence of consent
Whether consent could have been inferred
Effect on the claimant
Circumstances in which the information came to be possessed by the publisher
587
Does information in the public domain carry a reasonable expectation of privacy?
No
588
How can a person waive their reasonable expectation of privacy?
If they put their information in the public domain
589
When would photos of everyday activities e.g., shopping, going to a restaurant, infringe article 8?
When they aren't in the public interest and are purely of a private nature
590
Why was JK Rowlings sons 'expectation of privacy' not to have his photos published upheld?
Photo taken in clandestine way
For purposes of publication/sale
Child
Parents had taken great care to keep child out of public eye
591
Why would a person performing a public function not have a reasonable expectation of privacy?
Because their performance in their role could be of public interest
592
Would photos released of rioting minors count as violating a reasonable expectation of privacy?
No, releasing to identify rioters will likely be upheld
593
Is there a general common law right to privacy in the UKs common law?
No
594
What is the decisive factor in balancing the protection of private life against freedom of expression?
The contribution that the published photos and articles make to a debate of general interest
595
Is there a positive obligation on the state regarding a right to privacy?
Yes
596
Does article 8 take precedence over article 10 or vice versa?
Neither takes precedence
597
What 4 points did Lord Steyn say should be taken when balancing articles 8 and 10?
1. Neither article takes precedence
2. Where values under articles are in conflict, intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary
3. Justification for interfering or restricting each right must be taken into account
4. Proportionality test must be applied
598
What 5 criteria did the Grand Chamber set out for contracting states to consider when balancing articles 8/10?
1. Is info of debate of general interest?
2. How well known is the subject matter
3. Prior form and conduct of the individual
4. Form and consequences of the publication
5. Circumstances when photos were taken/consent
599
Can a super-injunction be discussed in parliament?
Yes, will probably be upheld
600
What 5 preliminary issues must be satisfied before a claim for judicial review can be made?
Amenability
Procedural Exclusivity
Standing
Time limits
Ouster clauses
601
What types of decisions are amenable to judicial review?
Public law decisions
602
What is the typical characteristics of a scenario when something is amenable to judicial review?
Public body carrying out a public function under a statutory power
**also prerogative powers
603
In the absence of statutory powers, when is a decision amenable to judicial review?
When it exercises public law functions or public law consequences
604
Why are self-regulatory authorities often amenable to judicial review?
Because they exercise a public function, especially if what they regulate benefits the public or if the authority wasn't there, if the government would need to regulate it
605
When would a self-regulatory body exercising a public function not be amenable to judicial review?
If the public function isn't governmental
e.g., horse racing
606
When will a service contracted out by the government be amenable to judicial review?
The distinguishing difference seems to be statutory underpinning of the service?
607
What are the 3 elements to the general procedural rule of judicial review?
JR is the procedure for public law decisions
Private matters dealt with by ordinary action
Public law challenge in any way other than JR would be an abuse of process
608
What are the 2 exceptions to the procedural exclusivity rule?
If neither party objected to private law procedure they could use it
Also when the contested decision was collateral (e.g., it rose out of some other legal claim)
609
If a litigant is asserting a private law right, which incidentally involves a public law issue, do they have to use JR?
No
610
Is judicial review appropriate for internal religious conflicts?
No
611
What is the minimum required to have standing for JR?
Sufficient interest in the matter to which the application relates
612
What 2 factors are considered when considering whether a JR applicant has sufficient standing?
Law
Fact
Sufficiency of interest should not be considered without regard to the matter of the complaint
613
When will an association have standing for JR?
When the individual members of the association are directly impacted or would have by themselves had standing
614
What factors will be considered before granting an international organisation standing for JR?
Whether individual members would have standing
National/international reputation of organisation
Motive of concern
Number of organisation supporters that might have standing
Whether individuals with standing would be able to bring a claim (e.g., resources)
Expertise of organisation
Seriousness of breach
Absence of other challengers
Vindication of ROL
615
When will an individual concerned citizen have standing for JR?
They have sincere concern
ROL is important
Are there other more directly interested challengers
616
What is the JR time limit?
Promptly
No later than 3mo after grounds arose
617
Can JR standing be refused if a claim was filed within 3mo but not promptly?
Yes
618
Can JR time limit be extended by party agreement?
No
619
Can the court grant an extension to a JR claim time limit?
Yes
620
What will the courts consider when looking at whether to grant a JR time limit extension?
Whether delay is undue
Substantial hardship
Substantially prejudice rights of any person
Detrimental to good administration
621
What is the JR time limit for planning decisions?
6 weeks
622
What is the JR time limit for public procurement?
30 days
623
Will a partial ouster saying JR has to be brought within a certain time limit be upheld?
Yes
624
Despite meeting requirements under all 5 preliminary's, when will JR not be available?
If other avenues and alternative remedies haven't been exhausted
625
What happens in JR procedure after standing within the time limit etc has been approved?
The full inter partes hearing where applicants present both sides to a decision
626
What 3 remedies are only available in JR cases?
Quashing order -- overturns decision of public body who must then take the procedure again
Prohibitory order -- prevents public body from acting
Mandatory order -- makes the public body perform an action
627
What additional 3 general remedies are available for JR cases?
Declaration
Injunction
Damages
628
Are JR remedies available as of right or discretion?
Discretion
629
How/when/why are JR remedies 'balanced'
The remedy is balanced against the degree of individual interest against the wider public interest
630
What are the 4 grounds for JR claims?
Illegality
Unreasonable
Procedural impropriety
Legitimate expectation
631
What does illegality as a JR ground mean?
Decision maker must correctly understand the law and must give effect to it
632
What are the 5 subcategories of JR illegality?
Simple illegality
Errors of law
Errors of fact
Abuse of discretion
Retention of discretion
633
What is simple illegality (JR)
When the authority acts ultravires
634
What is an exception to having acted somewhat ultra vires (JR)
If what the public body did was reasonably incidental or consequent upon a power that it did have
635
What is the principle of legality in JR?
Presumption that parliament did not intend to authorise the infringement of fundamental/constitutional rights unless it had given specific statutory authorisation
636
What is a JR error of law?
Decision maker was wrong about the law, or its interpretation
637
In what 3 circumstances will errors of law not be reviewable?
Where error of law is not decisive to the decision
Where decision maker is interpreting some special system of rules
Where the power granted is so imprecise that it can be interpreted in a wide range of ways
638
What is a JR error of fact?
When there has been a mistake as to fact that changed the decision
639
What 3 types of error of fact are susceptible to JR?
Precedent facts
No evidence for a fact
Ignorance or mistake of an established fact
640
What is a precedent fact?
When the decision makers power to decide something hinged on established an initial fact
641
What is no evidence for a fact?
When there is no evidence for a fact on which a decision is based
642
What will the courts consider when establishing ignorance or mistake of an established fact?
If the judgement requires the existence of facts:
Do the facts exist?
Have they been taken into account?
Was the judgement made upon proper self-direction as to those facts?
Was the judgement made upon other facts which shouldn't have been taken into account?
643
What will the courts refuse to examine in a JR case based on ignorance or mistake of an established fact?
The evaluation of those facts to arrive to a conclusion
They only look at whether they exist and have been considered
644
What characteristic must be satisfied for a claim based on ignorance or mistake of established fact to be reviewable?
1. Must be a mistake
2. Fact/evidence must have been established (uncontentious and objectively verifiable)
3. The appellant must not have been responsible for the mistake
4. Mistake must have played a material part in reasoning
645
In what 2 ways can abuse of discretion be established?
Failing to take a relevant consideration into account or taking a irrelevant consideration into account
Using a power for an improper purpose
646
What 3 types of considerations present themselves to a decision maker in terms of abuse of discretion?
1. Mandatory factors
2. Prohibitory factors
3. Discretionary factors
647
What is the JR ground improper purpose?
A decision maker can only use a power given to it by parliament for the purpose for which it was given
648
In what 2 ways does retention of discretion arise?
Fettering of discretion
Unlawful delegation of discretion
649
What is the general rule around delegating discretion when a public body is empowered to make a decision by an Act of Parliament?
That they cannot delegate their discretion
650
What is the Carltona principle?
An acknowledgement that it would not be practical or efficient for one government minister to personally make all the decisions that they are empowered to make
651
What are the 2 dimensions of reasonableness?
Basis of review
Intensity of review
652
What is the key difference between reasonableness and illegality?
Illegality is based on facts
Reasonableness is based on evaluation of facts
653
What are the 3 broad types of unreasonableness?
Material defects in decision making process
Oppressive decisions
Decisions that violate constitutional principles
654
What 2 factors arise from material defects in decision making process?
Wrongly weighing up factors
Irrationality, illogicality
655
What is a wrongly weighed up factor defect?
Correct factors were identified but they were weighed up wrong
656
What is an irrationality ground when looking at unreasonableness in JR?
Failure in the logical chain of reasoning by the decision maker
657
What is an oppressive decision under the unreasonableness criteria?
The decision is unreasonable because it is oppressive, draconian or disproportionate
658
How can JR unreasonableness be established under ROL?
Arbitrary decisions
Inconsistent and unclear decisions
Equality b4 the law
Consistency and certainty in application of the law
659
What is the starting point for reasonableness in JR?
Wednesbury criteria... SO unreasonable that no reasonable authority could have come to it
660
What is a sub-Wednesbury standard?
High intensity of review
Applied for fundamental rights
661
What is a super-wednesbury standard?
Low intensity review
Applied for social and economic policy
Same as OG wednesbury
662
What is procedural impropriety about?
The fairness of the procedure that was used to reach the decision
663
What are the 3 component parts/circumstances make up procedural impropriety?
Failure to observe procedural statutory rules
General duty to act fairly in public law decision making
Rule against bias
664
What will the courts consider when looking at procedural statutory obligations?
Was the statutory obligation so significant that parliament would have intended a failure to comply to render the process unlawful?
yes -- quashed
no -- not quashed
665
Under the common law duty to act fairly, how is the level of fairness owed determined?
What is at stake? The more that is at stake the more fairness required
666
What 3 tiers of fairness were established in licensing cases?
Revoking license -- most fairness required
Renewing a license -- medium fairness required
Applying first time -- low level of fairness required
667
What examples of the 'content' of fairness that are common in these kinds of cases?
Right of notice to a case against you
Right to make representations
Call witnesses
Legal representation
To receive reasons
668
What is direct bias under procedural impropriety?
A pecuniary or other direct personal interest in a matter they are determining
669
What would happen to a decision reached under a form of bias?
It would be quashed
670
Does there have to be proof that a bias was acted on in a deceitful way?
No, if it looks like there could be bias that is enough
671
What is the Porter v Magill test?
Whether the fair minded and informed observing having considered the facts would conclude that there was a real possibility that the public body was biased
672
When does a legitimate expectation arise in JR?
Expectation of procedure or benefit arising from a representation or promise made by an established practice
673
What are the 2 primary forms of legitimate expectation?
Procedural
Substantive
674
What is a procedural legitimate expectation?
Public body promised a specific procedure would be followed
Established practice
675
What will a substantive legitimate expectation entitle a person to?
The benefit that they had been promised
676
What is the courts 3 step approach to assessing legitimate expectation?
Has an expectation arisen
If so, is it legitimate
Has the public body lawfully frustrated the legitimate expectation
677
How can an expectation arise under legitimate expectation?
Express promise
Regular practice
678
What factors are considered to determine whether the expectation was legitimate?
Clarity
Legality
Agency
Knowledge
Reliance
679
